30 Jan 2010

In a recently reported decision, the Jammu and Kashmir High Court has declared that the respect a person commands and dignity one carries is not linked to the wealth one owns; respect and reputation of a person is not dependent on the richness of the person and rather it is the human values one imbibes which are determinative. The High Court was dealing with the challenge to an order passed by the lower court wherein a suit for defamation (i.e. one for damages for causing harm to the reputation of a person) was dismissed by the lower court on the premise that the claimant was a pauper, he did not command any reputation in the society. The High Court, however, disagreed and reversing the decision declared the law as under;

The ld. trial Judge has further assumed that as plaintiff has instituted a suit in forma pauperis so being not possessed of sufficient worldly possessions can't have any respect in the society and it is on these two assumptions the suit of the plaintiff has been dismissed. The respect and reputation of a person is not dependent upon how much wealth he has accumulated . A human being is entitled to lead respectful life in the civilized society. The human rights of an individual do pronounce that every individual shall be entitled to have respect in the society. Pronounced and professed values of the society do not state that only that person who has amassed worldly possession is entitled to respect and a poor man has no respect. If this assumption is followed and accumulation of wealth is made the touch stone for determining the reputation and respect one can have in the society, then a great dis-service will be done to the entire society. Such type of approach would prompt the people to amass wealth by hook or by crook and entire society will be ushered into an anarchical situation. No reasonable person will accept the reason given by ld. trial Judge for dismissing the suit of the plaintiff. Our society is already adrift in the ocean of debasing the human values. Conscious efforts are to be made to ensure that there is no further deterioration in the human values. The ground on which suit has been dismissed is not only un reasonable but also offends once conscience.

29 Jan 2010

Ever wondered if Page-3s are too explicit? Or that the glazed supplements are too much for your children to play a peek-a-boo? Even annoyed at the vast amount of glittering and sexually motivated information available in public domain and well within reach of your innocent children? Well if any of the answers to the above are yes, one may as well have a look with interest at the decision of the Supreme Court dealing with the issue.

In India where the right to freedom of speech and expression is wide but not as wide as the First Amendment of the US Constitution would carry, and in this country where the freedom is subject to reasonable restrictions, the Supreme Court was called upon by a lawyer to adjudge the limits upto which the media could go to portray such stuff on the mediums of public information in a petition filed by a famed lawyer. The Court noted the anxiety: "The Lawyer Petitioner who appeared in person submitted that he filed this petition to seek protection from this Court to ensure that minors are not exposed to sexually exploitative materials, whether or not the same is obscene or is within the law. The real objective is that the nature and extent of the material having sexual contents should not be exposed to the minors indiscriminately and without regard to the age of minor. The discretion in this regard should vest with parents, guardians, teachers or experts on sex education." All major national newspapers were made parties to defend their actions before the Court.

The decision in particular noted some of specific instances which compelled the petition to approach the Supreme Court, a sentiment which would be shared by most parents: "If the minor is of an age where he/she cannot understand the meaning, he/she would like to know from others and if the minor has come to an age where he/she is able to understand this would certainly energize his grey cells in the brain and would titillate him/her. What kind of culture and message the article titled "moan for more" or "get that zing bag into your sex life" convey. Is it really necessary for a child to read at a very early stage the concept of masturbation, ejaculation, penetration etc. as is normally discussed by so called sex experts in columns of newspapers. At what age should we start telling our children where to have sex and how to break their monotony. News item on MMS clipping is certainly not obscene but do we really need to show the nude photographs with only small black stripes on the private parts to our children without even bothering of its effect."

The Supreme Court, however, was of the opinion otherwise. It chose not to issue any particular directions to the media/newspapers being of the opinion that the process of publication of such content in the media was regulated. Relating to the context in which such publications were made in the media, the Court set aside the presumption that it was meant to deprave the minds of the young. The Court inter alia observed;

In view of the foregoing legal propositions the pictures in dispute had been published by the respondents with the intent to inform readers of the current entertainment news from around the world and India. The respondent’s newspaper seeks to provide a wholesome reading experience offering current affairs, sports, politics as well as entertainment news to keep its readers abreast of all the latest happenings in the world. The pictures that have been published should not be viewed in isolation rather they have to be read with the news reports next to them. In the event, that a particular news items or picture offends any person they may avail of the remedies available to them under the present legal framework. Any steps to impose a blanket ban on publishing of such photographs, in our opinion, would amount to prejudging the matter as has been held in the matter of Fraser vs. Evans, 1969 (1) QB 549. The definition of obscenity differs from culture to culture, between communities within a single culture, and also between individuals within those communities. Many cultures have produced laws to define what is considered to be obscene, and censorship is often used to try to suppress or control materials that are obscene under these definitions. The term obscenity is most often used in a legal context to describe expressions (words, images, actions) that offend the prevalent sexual morality. On the other hand the Constitution of India guarantees the right of freedom to speech and expression to every citizen. This right will encompass an individuals take on any issue.However, this right is not absolute, if such speech and expression is immensely gross and will badly violate the standards of morality of a society. Therefore, any expression is subject to reasonable restriction. Freedom of expression has contributed much to the development and well-being of our free society.

This right conferred by the Constitution has triggered various issues. One of the most controversial issues is balancing the need to protect society against the potential harm that may flow from obscene material, and the need to ensure respect for freedom of expression and to preserve a free flow of information and idea. Be that as it may, the respondents are leading newspapers in India they have to respect the freedom of speech and expression as is guaranteed by our constitution and in fact reaches out to its readers any responsible and decent manner. In our view, any steps to ban publishing of certain news pieces or pictures would fetter the independence of free press which is one of the hallmarks of our democratic setup. In our opinion, the submissions and the propositions of law made by the respective counsel for the respondents clearly established that the present petition is liable to be dismissed as the petitioner has failed to establish the need and requirement to curtail the freedom of speech and expression.

We are also of the view that a culture of ’responsible reading’ should be inculcated among the readers of any news article. No news item should be viewed or read in isolation. It is necessary that publication must be judged as a whole and news items, advertisements or passages should not be read without the accompanying message that is purported to be conveyed to the public. Also the members of the public and readers should not look for meanings in a picture or written article, which is not conceived to be conveyed through the picture or the news item. We observe that, as decided by the American Supreme Court in United States v. Playboy Entertainment Group, Inc, 146 L ed 2d 865, that, "in order for the State to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint." Therefore, in our view, in the present matter, the petitioner has failed to establish his case clearly. The petitioner only states that the pictures and the news items that are published by the respondents 3 and 4 ’leave much for the thoughts of minors’. Therefore, we believe that fertile imagination of anybody especially of minors should not be a matter that should be agitated in the court of law.

Have a look at the decision, the implications of which are that the Courts would be reluctant to admit a challenge to such publications. The key to any such regulation, therefore, now lies with the executive alone which regulations the broadcast and publication of such information. Well, so much for the plight of the parents seeking to protect their children from the windfall knowledge available in public domain.

27 Jan 2010

In a recent decision the Kerala High Court has upheld the policy of the Government to provide for reservation on the grounds of economic backwardness of citizens. It was argued before the High Court that "The Constitution does not empower or enable the Governments to take away the benefits which would otherwise be available for socially and educationally backward classes and dole them out to the members of the forward communities. This is nothing but appeasement of the forward communities which constitute majority of the population. Majority of the aided and unaided educational institutions in the State are under the control of the forward communities and Christians. Students belonging to Muslim community, (which is admittedly a socially and educationally backward segment) are unable to get admission in those institutions. Therefore the decision of the Government to reserve 10% of the seats at the graduate and post graduate level in Government colleges and 7.5% of seats in the various Departments under the Universities will amount to violation of the constitutional obligation cast on the Government to give adequate protection to the under privileged communities in the State."

The High Court, however, was not impressed. It was quick to set aside the challenge to the reservation, declaring the law to such regard as under;

While students belonging to socially and educationally backward communities and Scheduled Castes and Scheduled Tribes enjoy the benefit of reservation in the matter of admission to educational institutions, many of those who belong to forward communities most often fail to get admission only because they do not enjoy any benefit of reservation. These students are considered for admission only on the basis of merit. Number of seats available under merit quota will be comparatively less after allocation of seats under the reserved quota to various categories. Many of those students, especially those who are not economically affluent and who fall under the so called below poverty line are faced with the gloomy prospect of discontinuing their studies since they cannot afford to go to private institutions which demand heavy tuition fees. The attempt of the Government appears to be only to ameliorate the grievance of this class of students who, fortunately or unfortunately, belong to forward communities.

On the status of backwardness in the country and the requirement to provide for such people, the Court emphatically observed;

9. Backwardness, be it social, educational, economic etc. is a malady that our Republic inherited from the British Colonial rule. There is no denying the fact that the overall socio economic scenario in the country has improved after independence, quite drastically. The yeomen services rendered by our social reformers of the yester years have yielded dramatic results, though it has been a slow process. This does not mean that the social evils that beset the less fortunate segments of the society have been eradicated. But still, the general standards of living of the down trodden communities have improved by leaps and bounds. The castes and communities which suffered oppression and discriminatory treatment of despicable proportions, in the yester years have now started to enjoy almost equal status in all walks of life, though some communities in some parts of the country, are still being treated shabbily.

10. Communal reservation is a sweet phraseology which has come to stay in the country ever since independence. The backward communities, Scheduled Castes, Scheduled Tribes etc. have enjoyed this benefit for the last more than six decades. It is true that the benefits extended by the Union and the States in the form of reservation, not only in education but in employment as well, has helped the less fortunate communities to a great extent to come up the social and economic ladder.

11. As mentioned earlier, the socio economic conditions of the Scheduled Castes and Scheduled Tribes and educationally and socially backward classes have undergone a revolutionary change. Undoubtedly the above policy that is being followed, not only by the Union Government but by all the States in the Republic, is quite exemplary and laudable. But, in our view, time has now come to awaken these communities from the slumber of satiated insouciance. These communities must start to realise that over indulgence of the Government in extending these benefits will only stunt their growth.

12. Excellence in education and in professional fields can be achieved if only there is an element of competitiveness. It must be ensured by all concerned that members of these communities are made to compete with the best in the country. They must earn their admissions in educational institutions at least at the higher/post graduate level, after competing with meritorious students. In the matter of employment also it is high time that the quota of reservation is gradually brought down so that there is an element of competition in gaining employment. The higher the competition level, be it in education or employment, the greater will be the advantage to the people belonging to such backward communities.

In a recent decision the Supreme Court has redefined the law relating to right of self-defence. Traditionally seen as a mitigating factor to criminal liability the Apex Court has gone ahead by giving a relook and lay down a ten-point guideline for the citizens of this country to exercise their right of self-defence. Closely examining the earlier decisions on the point, the Apex Court in no uncertain terms went on to declare that "A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened."

The Court declared the legal position as under;

1. Self-preservation is the basic human instinct and is duly recognized by the criminal jurisprudence of all civilized countries. All free, democratic and civilized countries recognize the right of private defence within certain reasonable limits.2. The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of self-creation.3. A mere reasonable apprehension is enough to put the right of self defence into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised.4. The right of private defence commences as soon as a reasonable apprehension arises and it is co-terminus with the duration of such apprehension.5. It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude.6. In private defence the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property.7. It is well settled that even if the accused does not plead self-defence, it is open to consider such a plea if the same arises from the material on record.8. The accused need not prove the existence of the right of private defence beyond reasonable doubt.9. The Indian Penal Code confers the right of private defence only when that unlawful or wrongful act is an offence.10. A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened.

26 Jan 2010

In a recent decision, the United States Supreme Court by 5:4 majority has overruled its previous decision invalid and unconstitutional the law placing a cap on the spendings by corporations for supporting candidates during elections. The Supreme Court declared that its earlier decision of upholding the law placing the cap was violative of the First Amendment to the US Constitution which establishes the right to free speech and since political speech was an inherent part of such right, no distinction could be made on this ground between an individual and a corporate entity.

The Supreme Court was dealing with a challenge made by a non-profit corporation in the name and style of 'Citizens United' which sought to promote an ad-campaign against Hillary Clinton during the prelude to the previous United States President elections. However it faced a barrier in this regard in as much as a federal law (Bipartisan Campaign Reform Act of 2002) prohibited "corporations and unions from using general treasury funds to make direct contributions to candidates or inde-pendent expenditures that expressly advocate the election or defeat of a candidate, through any form of media, inconnection with certain qualified federal elections". The action was initially brought before the United States District Court for the District of Columbia but being dissatisfied with its decision, the corporation appealed before the US Supreme Court.

In this factual background, the Supreme Court thought wiser to reconsider its earlier decision in as much in its opinion the law under challenge had the potential of being used as a medium by the Government to silence any person during an election campaign. The Court inter-alia observed;

Section 441b’s prohibition on corporate independent expenditures is thus a ban on speech. As a “restriction on the amount of money a person or group can spend onpolitical communication during a campaign,” that statute “necessarily reduces the quantity of expression by restrict-ing the number of issues discussed, the depth of their exploration, and the size of the audience reached.” Buck-ley v. Valeo, 424 U. S. 1, 19 (1976) (per curiam). Were the Court to uphold these restrictions, the Government couldrepress speech by silencing certain voices at any of the various points in the speech process. See McConnell, supra, at 251 (opinion of SCALIA, J.) (Government couldrepress speech by “attacking all levels of the production and dissemination of ideas,” for “effective public communi-cation requires the speaker to make use of the services ofothers”). If §441b applied to individuals, no one would believe that it is merely a time, place, or manner restric-tion on speech. Its purpose and effect are to silence entities whose voices the Government deems to be suspect.

Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people. See Buckley, supra, at 14–15 (“In a republic where the people are sovereign, the ability of the citizenry to make informedchoices among candidates for office is essential”). The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition toenlightened self-government and a necessary means to protect it. The First Amendment “‘has its fullest and most urgent application’ to speech uttered during a campaignfor political office.” Eu v. San Francisco County Democ-ratic Central Comm., 489 U. S. 214, 223 (1989) (quoting Monitor Patriot Co. v. Roy, 401 U. S. 265, 272 (1971)); see Buckley, supra, at 14 (“Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution”).

For these reasons, political speech must prevail against laws that would suppress it, whether by design or inadver-tence. Laws that burden political speech are “subject to strict scrutiny,” which requires the Government to prove that the restriction “furthers a compelling interest and is narrowly tailored to achieve that interest.” WRTL, 551 U. S., at 464 (opinion of ROBERTS, C. J.). While it might be maintained that political speech simply cannot be banned or restricted as a categorical matter, see Simon & Schuster, 502 U. S., at 124 (KENNEDY, J., concurring in judgment), the quoted language from WRTL provides asufficient framework for protecting the relevant First Amendment interests in this case. We shall employ it here.

Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or view points. See, e.g., United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 813 (2000) (striking down content-based restriction). Prohibited, too, are restrictions distinguishing among different speakers, allowing speech by some but not others. See First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 784 (1978). As instruments to censor, these categories are interrelated: Speech restrictions based on the identity of the speaker are all too often simply a means to control content.

Quite apart from the purpose or effect of regulating content, moreover, the Government may commit a consti-tutional wrong when by law it identifies certain preferred speakers. By taking the right to speak from some andgiving it to others, the Government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker’s voice. The Government may not by these means deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration. The First Amendment protects speech and speaker, and the ideas that flow from each.

On the aspect of restriction on electoral expenditure, the Supreme Court opined inter-alia that;

Thus the law stood until Austin. Austin “uph[eld] a direct restriction on the independent expenditure of funds for political speech for the first time in [this Court’s] his-tory.” 494 U. S., at 695 (KENNEDY, J., dissenting). There, the Michigan Chamber of Commerce sought to use general treasury funds to run a newspaper ad supporting a spe-cific candidate. Michigan law, however, prohibited corpo-rate independent expenditures that supported or opposed any candidate for state office. A violation of the law was punishable as a felony. The Court sustained the speech prohibition. ...

It is irrelevant for purposes of the First Amendment that corporate funds may “have little or no correlation to the public’s support for the corporation’s political ideas.” Id., at 660 (majority opinion). All speakers, includingindividuals and the media, use money amassed from the economic market place to fund their speech. The First Amendment protects the resulting speech, even if it was enabled by economic transactions with persons or entities who disagree with the speaker’s ideas. See id., at 707 (KENNEDY, J., dissenting) (“Many persons can trace theirfunds to corporations, if not in the form of donations, then in the form of dividends, interest, or salary”). ...

Austin’s antidistortion rationale would produce the dangerous, and unacceptable, consequence that Congress could ban political speech of media corporations. See McConnell, 540 U. S., at 283 (opinion of THOMAS, J.) (“The chilling endpoint of the Court’s reasoning is not difficult toforesee: outright regulation of the press”). Cf. Tornillo, 418 U. S., at 250 (alleging the existence of “vast accumula-tions of unreviewable power in the modern media em-pires”). Media corporations are now exempt from §441b’s ban on corporate expenditures. See 2 U. S. C. §§431(9)(B)(i), 434(f)(3)(B)(i). Yet media corporations accumulate wealth with the help of the corporate form, the largest media corporations have “immense aggregations of wealth,” and the views expressed by media corporationsoften “have little or no correlation to the public’s support”for those views. Austin, 494 U. S., at 660. Thus, under the Government’s reasoning, wealthy media corporations could have their voices diminished to put them on parwith other media entities. There is no precedent for per-mitting this under the First Amendment. ...

Austin interferes with the “open marketplace” of ideas protected by the First Amendment. New York State Bd. of Elections v. Lopez Torres, 552 U. S. 196, 208 (2008); see ibid. (ideas “may compete” in this marketplace “without government interference”); McConnell, supra, at 274 (opinion of THOMAS, J.). It permits the Government to banthe political speech of millions of associations of citizens. See Statistics of Income 2 (5.8 million for-profit corpora-tions filed 2006 tax returns). Most of these are small corporations without large amounts of wealth. See Supp.Brief for Chamber of Commerce of the United States of America as Amicus Curiae 1, 3 (96% of the 3 million busi-nesses that belong to the U. S. Chamber of Commerce have fewer than 100 employees); M. Keightley, Congres-sional Research Service Report for Congress, Business Organizational Choices: Taxation and Responses to Legis-lative Changes 10 (2009) (more than 75% of corporationswhose income is taxed under federal law, see 26 U. S. C. §301, have less than $1 million in receipts per year). This fact belies the Government’s argument that the statute is justified on the ground that it prevents the “distortingeffects of immense aggregations of wealth.” Austin, 494 U. S., at 660. It is not even aimed at amassed wealth.

The censorship we now confront is vast in its reach. The Government has “muffle[d] the voices that best represent the most significant segments of the economy.” McCon-nell, supra, at 257–258 (opinion of SCALIA, J.). And “the electorate [has been] deprived of information, knowledge and opinion vital to its function.” CIO, 335 U. S., at 144 (Rutledge, J., concurring in result). By suppressing the speech of manifold corporations, both for-profit and non-profit, the Government prevents their voices and view-points from reaching the public and advising voters onwhich persons or entities are hostile to their interests. Factions will necessarily form in our Republic, but the remedy of “destroying the liberty” of some factions is “worse than the disease.” The Federalist No. 10, p. 130 (B.Wright ed. 1961) (J. Madison). Factions should be checked by permitting them all to speak, see ibid., and by entrust-ing the people to judge what is true and what is false.

The purpose and effect of this law is to prevent corporations, including small and nonprofit corporations, from presenting both facts and opinions to the public. This makes Austin’s antidistortion rationale all the more an aberration. “[T]he First Amendment protects the right of corporations to petition legislative and administrative bodies.”

In this background, inclined to overrule its earlier decision, the majority held that the times had changed since its earlier decision in as much as the decision notes that "informative voices should not have to circumvent onerous restrictions to exercise their First Amendment rights. Speakers havebecome adept at presenting citizens with sound bites, talking points, and scripted messages that dominate the 24-hour news cycle. Corporations, like individuals, do not have monolithic views. On certain topics corporations may possess valuable expertise, leaving them the best equipped to point out errors or fallacies in speech of all sorts, including the speech of candidates and elected officials. Rapid changes in technology—and the creative dynamicinherent in the concept of free expression—counsel against upholding a law that restricts political speech in certain media or by certain speakers. Today, 30-second television ads may be the most effectiveway to convey a political message. Soon, however, it may bethat Internet sources, such as blogs and social networking Web sites, will provide citizens with significant information about political candidates and issues. Yet, §441b would seem to ban a blog post expressly advocating the election or defeat of a candidate if that blog were createdwith corporate funds. The First Amendment does not permit Congress to make these categorical distinctions based onthe corporate identity of the speaker and the content of the political speech."

Given this enunciation of law, the majority decision concluded thus

"Due consideration leads to this conclusion: Austin, 494 U. S. 652, should be and now is overruled. We return to the principle established in Buckley and Bellotti that the Government may not suppress political speech on thebasis of the speaker’s corporate identity. No sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit corporations."

There is mixed reaction from political fields. The President of the United States has openly criticized this decision being of the opinion that the decision "opens the floodgates for an unlimited amount of special interest money into our democracy" whereas the Republican members of the US Congress have welcomed this decision. As for the Indian angle, a Times of India correspondent comments on this decision in the following manner: "Imagine such a judgment coming from the Indian Supreme Court. Immediately, the knives would have been out against the judges and the rumour mills would have gone berserk circulating that the judges, who favoured open funding of candidates in elections, were bought over by corporate honchos."

In a recent order, the Supreme Court has affirmed the decision of the Kerala High Court wherein it had brushed aside the challenge made by a PIL seeking blanket ban on anti-pregnancy pills in the country. The petition was filed by a self-styled club claiming that "its main aim and object is to protect, preserve and uphold the dignity of every human being, right from fallopian tube till natural death occurs, irrespective of consideration, such as creed, colour, language,, religion, gender, politics etc., and also prevent abortion at any stage by all means".

Seeking the ban on anti-pregnancy pills, it was argued that "availability of these types of tablets, without any restriction, would adversely affect the younger generation of the nation and in the long run, it would destroy the morality and the society will fall into anarchy". Medical literature was also relied to argue "that within 12 hours of a successful sexual intercourse by male and female, there must be a pregnancy and at the time of fertilization itself or union of the sperm and the egg, there is a beginning of human life and as such, in view of the claim of the 4th respondent that no pregnancy can take place within 72 hours of sexual intercourse, is a misleading statement and in effect it amounts to abortion, as the life is terminated prematurely."

The High Court, however, was not impressed. It set aside the challenge to the pills and dismissed the petition, a decision which was affirmed by the Supreme Court. The High Court inter alia had declared that;

At the outset, it has to be noted that the conflict between the moralists and the medical science is going on, as to when life begins in the womb, when is an embryo said to have been formed and the conflict regarding the moral aspect of abortion. In our view, we are not required to go into the morality aspect, but only consider the medical consequences of the i-pill drug, that is to say, whether it is a contraceptive tablet or it is a medicine for causing abortion.

10. As per the report of the Consortium on National Consensus for Emergency Contraception in collaboration with World Health Organization, Ministry of Health and Family Welfare and Indian Council of Medical Research, most of the women in India, following an accidental undesired sexual exposure and not wanting to conceive, do not even know that unwanted pregnancy can still be avoided; they just wait with anxiety, for the period to come and by the time they come to know that they are pregnant, it is too late. However, to avoid unwanted pregnancy, they resort to abortion, either with the help of Quacks or old women, who are known to be experts in causing abortion, or in some cases, abortion induced by medicines. It is also known that in this unscientific use of abortion, many women lost their lives and that is why the Medical Termination of Pregnancy Act, 1971 was enacted to prevent illegal prevention of pregnancy. It is also not much in dispute that for want of sufficient knowledge or awareness on the part of Indians, the population is increasing at enormous and alarming rate and because of the vast growth of population, the State Governments are not able to provide the basic requirements to all these people.

11. As such, in our view and as reported by the Consortium on National Consensus for Emergency Contraception, it is necessary to provide information to all the people as to the availability of contraceptive measures. In fact, the Government itself has come forward with Family Planning Schemes, by freely providing contraceptives, like Nirodh and also contraceptive pills at cheaper rate.

12. Keeping in view these objects and as we find that the tablet i-pill manufactured by the 4th respondent is only a contraceptive pill and does not cause abortion, the apprehension of the petitioner is misconceived. Though the individual morality concept based on religious faith may prohibit even the contraceptive measures, the courts cannot go into it. In the light of what we have observed above, since i-pill is only a contraceptive pill meant for preventing fertilization and not meant for causing abortion, we find no merit in the writ petitioner's case.

25 Jan 2010

The law of limitation is a conscious attempt on the part of the law-makers to put an end to stale claims is based on the equitable principle that ‘delay defeats equity'. For each of the different types of claims available under law, the law of limitation provides a time-frame within which such claims are to be preferred or else they become unenforceable. The parties, it seems, are however even wiser. Contractual drafting has identified a lacunae whereby these limitation hurdles can be crossed and private parties determine the law. The law to this regard, particularly to the advantage of insurance companies, is highly skewed.

Standard form contracts and even tailor made contracts these days provide that a party shall not be liable if a claim is not raised within a period of time, say twelve months, which often is less than the period prescribed by Limitation Act for such suits and such clauses has been upheld by the courts in India even though they go, in principle, against the law of limitation. We had written an article a few years back on the issue entitled 'Is Limitation Act subject to Contract?' and pointed out the shortfalls of such attempts by the parties to supplant the law. However the judicial opinion has remained trite in favour of such attempts and the recent decision of the Delhi High Court is indicative of the fact that such manipulations are now an accepted proposition under Indian law. The High Court in its decision observed as under;

8. The issue raised by the petitioner regarding clause 6(b)(ii) and the plea taken by the respondent about the clause being hit by Section 28 has been set at rest by the Supreme Court in National Insurance Company Ltd. vs. Sujir Ganesh Nayak & Company AIR 1997 SC 2049. The Supreme Court has reiterated this legal position Himachal Pradesh State Conference Company Ltd. vs. Union of India Insurance Company Ltd. (2009) 2 SCC 252 wherein it was pleaded before the Supreme Court that the law laid down in AIR 1997 SC 2049 (supra) Supreme Court was not a good law and the Court should re-consider the position. The Supreme Court observed as under:

“11. We see from the order of the Commission that it has relied upon Sujir Ganesh Nayak case to hold that the complaint could not be entertained as being time-barred. The counsel for the appellant had, however, argued before the Commission as also before us, that as Section 28 of the Contract Act had undergone significant amendments, the aforesaid judgment required a reappraisal. This submission had been rejected by the Commission by observing that it was bound by the judgment in Sujir Ganesh Nayak case and that the appellant could agitate the question as to its correctness before the Supreme Court. The matter was, accordingly, adjourned by us to enable the parties to find out if the amendment had, indeed, been made and, if so, to what effect. During the resumed hearing, the learned counsel for the appellant candidly admitted that the amendment had been made but had thereafter been repealed and the matter would, thus, have to be examined under Section 28 of the Contract Act, as originally placed. We have, accordingly, chosen to deal with this matter under that provision.

xxxxx xxxxx xxxxx xxxxx

13. In Sujir Ganesh Nayak case to which primary reference has been made by the learned counsel for the parties, while dealing with an identical situation where a contract contained a provision prescribing a period of limitation shorter than that prescribed by the Limitation Act, it was held that the contractual provisions was not hit by Section 28 as the right itself had been extinguished.

14. Mr. Sharma has, however, submitted that in view of the observations in some paragraphs in Food Corpn. Of India case, the observations in Sujir Ganesh Nayak case were liable to reconsideration. We, however, find no merit in this plea for the reason that in Sujir Ganesh Nayak case, Food Corpn, of India case has been specifically considered and Vulcan Insurance Co. case too had been relied upon.

15. In Sujir Ganesh Nayak case the Court was called upon to consider Condition 19 of the policy which was in the following terms: (SCC p.370, para 5) “5. …. "Condition 19. – In no case whatever shall the company be liable for any loss or damage after the expiration of 12 months from the happening of loss or the damage unless the claim is the subject of pending action or arbitration.‟ “ While constraining this provision vis-à-vis Section 28 of Contract Act and the cases cited above and several other cases, in addition, this is what the Court ultimately concluded: (Sujir Ganesh Nayak case, SC pp.375-77, paras 16, 19 & 21)

“16. From the case law referred to above the legal position that emerges is that an agreement which in effect seeks to curtail the period of limitation and prescribes a shorter period than that prescribed by law would be void as offending Section 28 of the Contract Act. That is because such an agreement would seek to restrict the party from enforcing his right in court after the period prescribed under the agreement expires even though the period prescribed by law for the enforcement of his right has yet not expired. But there could be agreements which do not seek to curtail the time for enforcement of the right but which provide for the forfeiture or waiver of the right itself if no action is commenced within the period stipulated by the agreement. Such a clause in the agreement would not fall within the mischief of Section 28 of the Contract Act. To put it differently, curtailment of the period of limitation is not permissible in view of Section 28 but extinction of the right itself unless exercised within a specified time is permissible and can be enforced. If the policy of insurance provides that if aclaim is made and rejected and no action is commenced within the time stated in the policy, the benefits flowing from the policy shall stand extinguished and any subsequent action would be time-barred. Such a clause would fall outside the scope of Section 28 of the Contract Act. This, in brief, seems to be the settled legal position. We may now apply it to the facts of this case.

xxxx xxxx xxxx xxxx

19. The clause before this Court in Food Corpn. Case extracted hereinbefore can instantly be compared with the clause in the present case. The contract in that case said that the right shall stand extinguished after six months from the termination of the contract. The clause was found valid because it did not proceed to say that to keep the right alive the suit was also required to be filed within six months. Accordingly, it was interpreted to mean that the right was required to be asserted during that period by making a claim to the Insurance Company. It was therefore held that the clause extinguished the right itself and was therefore not hit by Section 28 of the Contract Act. Such clauses are generally found in insurance contracts for the reason that undue delay in preferring a claim may open up possibilities of false claims which may be difficult of verification with reasonable exactitude since memories may have faded by then and even ground situation may have changed. Lapse of time in such cases may prove to be quite costly to the insurer and therefore it would not be surprising that the insurer would insist that if the claim is not made within a stipulated period, the right itself would stand extinguished. Such a clause would not be hit by Section 28 of the Contract Act.

xxxx xxxx xxxx xxxx

21. Clause 19 in terms said that in no case would the insurer be liable for any loss or damage after the expiration of twelve months from the happening of loss or damage unless the claim is subject of any pending action or arbitration. Here the claim was not subject to any action or arbitration proceedings. The clause says that if the claim is not pressed within twelve months from the happening of any loss or damage, the Insurance Company shall cease to be liable. There is no dispute that no claim was made nor was any arbitration proceeding pending during the said period of twelve months. The clause therefore has the effect of extinguishing the right itself and consequently the liability also. Notice the facts of the present case. The Insurance Company was informed about the strike by the letter of 28-4-1977 and by letter dated 10-5-1977. The insured was informed that under the policy it had no liability. This was reiterated by letter dated 22-9-1977. Even so more than twelve months thereafter on 25-10-1978 the notice of demand was issued and the suit was filed on 2-6-1980. It is precisely to avoid such delays and to discourage such belated claims that such insurance policies contain a clause like Clause 19. That is for the reason that if the claims are preferred with promptitude they can be easily verified and settled but if it is the other way round, we do not think it would be possible for the insurer to verify the same since evidence may not be fully and completely available and memories may have faded. The forfeiture Clause 12 also provides that if the claim is made but rejected, an action or suit must be commenced within three months after such rejection; failing which all benefits under the policy would stand forfeited. So, looked at from any point of view, the suit appears to be filed after the right stood extinguished. That is the reason why in Vulcan Insurance case while interpreting a clause couched in similar terms this Court said:(SCC p.952, para 23)

‟23. … It has been repeatedly held that such a clause is not hit by Section 28 of the Contract act…‟ Even if the observations made are in the nature of obiter dicta we think they proceed on a correct reading of the clause.”

In the light of the fact that Food Corpn. Case has been considered in Sujir Nayak case, no further argument remains in the present matter, as Clause 6(ii) and Condition 19 are, in their essence, pari material.”

9. In view of the above legal position upheld by Supreme Court recently, I consider that the Clause 6(b)(ii) was binding between the parties and the respondent’s claim raised after 12 months of the final amount he received under the settlement was not entertainable and could not have been considered by the Arbitrator. The award of the Arbitrator is liable to be set aside on this sole ground. I, therefore, hereby set aside the award.

In a recently reported decision the Delhi High Court has explained the meaning and implications of the various 'ouster clauses' in the agreements wherein the parties agree to submit their disputes before a particular forum only. In this case, the High Court was dealing with the validty of the case filed by a party to an agreement before the Delhi High Court whereas in the agreement it had been agreed "That both the parties irrevocably and unconditionally consent to submit to the exclusive jurisdiction of the courts in Chandigarh".

Explaining the legal position, the High Court directed the parties to appear before the courts in Chandigarh, observing inter alia as under;

17. Having considered the submissions of the counsel for the parties, it appears to this Court that the defendant will succeed in these applications. The question of jurisdiction has to be decided on the facts and circumstances of every case. In A.B.C. Laminart Pvt. Ltd. v. A.P. Agencies, Salem, the Supreme Court in para 21 explained the position concerning the ouster clause as under (SCC @ p.175-76):

“From the foregoing decisions it can be reasonably deduced that where such an ouster clause occurs, it is pertinent to see whether there is ouster of jurisdiction of other Courts. When the clause is clear, unambiguous and specific accepted notions of contract would bind the parties and unless the absence of ad idem can be shown, the other courts should avoid exercising jurisdiction. As regards construction of the ouster clause when words like 'alone', 'only, 'exclusive' and the like have been used there may be no difficulty. Even without such words in appropriate cases the maxim 'expressio unius est exclusio alterius' - expression of one is the exclusion of another - may be applied. What is an appropriate case shall depend on the facts of the case. In such a case mention of one thing may imply exclusion of another. When certain jurisdiction is specified in a contract an intention to exclude all others from its operation may in such cases be inferred. It has therefore to be properly construed.”

In light of the law explained by the Supreme Court in A.B.C. Laminart Pvt. Ltd. v. A.P. Agencies, Salem, the wording of the ouster clause is unambiguous particularly when it uses words like “exclusive”. In those circumstances, no option is left to the court to still assert its jurisdiction. Once an ouster clause is clear that it is only the court in Chandigarh that will have the jurisdiction, it is not possible to ignore such a clause and still say that since a part of the cause of action has arisen within the territorial jurisdiction of this court, this suit should be entertained.

Ever since the imposition of emergency lead to the disturbance of the practice of appointment of the senior-most judge as the Chief Justice of India, the issue has been one always in state of flux. No doubt a constitutional bench of the Supreme Court has declared that the decision of collegium is one to be preferred yet the recent report of the Law Commission of India and the objections raised by prominent jurists questioning the effectiveness of the Collegium process have raised important constitutional questions which are not only worth pondering over but which require a serious relook at the entire process.

In this paper authored by a student of Indian Law Institute entited "Appointment of Judges in Higher Judiciary: An Interpretational Riddle", recently doing its rounds on SSRN updates, the issues relating to the Appointment of Judges in Higher Judiciary has been proficiently explained and the crux of the debate captured. The paper traces the trends in an historical account and thereon goes on to explain the touching issues of the debate. Overall it provides an interested reader an opportunity to get conversant with the critical issues facing the appointment process.

24 Jan 2010

In a recently delivered decision, a larger bench of Bombay High Court has declared that a woman born as a Scheduled Caste does not lose her status as a member of the Scheduled Caste even if she is married to a husband from forward caste. The High Court was examining the viability of the contention that “ If a woman who by birth belongs to a scheduled caste or a scheduled tribe marries to a man belonging to a forward caste, whether on marriage she ceases to belong to the scheduled caste or the scheduled tribe?" in the context of the proposition as to whether an offence under the provisions of Atrocities Act can be registered and investigated against a person who abuses a woman in the name of her caste even though she is married to a person belonging to forward caste. The High Court declared in the negative.

The High Court inter-alia observed as under;

8. A Constitution Bench of the Apex Court in the case of V.V. Giri vs. D. Suri Dora,(1960) 1 SCR 42 dealt with the issue as to whether a person who is a member of a scheduled tribe can cease to be a member of such tribe and can be said to have become a member of another caste. The Apex Court observed thus:

“That contention is that Respondent 1 had ceased to be a member of the scheduled tribe at the material time because he had become a kshatriya. In dealing with this contention it would be essential to bear in mind the broad and recognised features of the hierarchical social structure prevailing amongst the Hindus. It is not necessary for our present purpose to trace the origin and growth of the caste system amongst the Hindus. It would be enough to state that whatever may have been the origin of Hindu castes and tribes in ancient times, gradually status came to be based on birth alone. It is well known that a person who belongs by birth to a depressed caste or tribe would find it very difficult, if not impossible, to attain the status of a higher caste amongst the Hindus by virtue of his volition, education, culture and status. The history of social reform for the last century and more has shown how difficult it is to break or even to relax the rigour of the inflexible and exclusive character of the caste system. It is to be hoped that this position will change, and in course of time the cherished ideal of casteless society truly based on social equality will be attained under the powerful impact of the doctrine of social justice and equality proclaimed by the Constitution and sought to be implemented by the relevant statutes and as a result of the spread of secular education and the growth of a rational outlook and of proper sense of social values; but at present it would be unrealistic and utopian to ignore the difficulties which a member of the depressed tribe or caste has to face in claiming a higher status amongst his co-religionists.”(Emphasis added)

Thus, membership of a caste is involuntary. Historically persons carrying on one particular occupation may belong to one particular social class forming a particular caste. A person born in a family belonging to a particular caste which is associated with a particular occupation may not continue the occupation. But still he remains and continues to be a member of a social class forming the said caste. The reason is that the label remains. For the purposes of marriage and all other social functions up to his or her death, the caste continues to be relevant. Notwithstanding all attempts of weeding out this phenomenon, the stark reality is that the theme still remains the same.

12. When a woman born in a scheduled caste or a scheduled tribe marries to a person belonging to a forward caste, her caste by birth does not change by virtue of the marriage. A person born as a member of scheduled caste or a scheduled tribe has to suffer from disadvantages, disabilities and indignities only by virtue of belonging to the particular caste which he or she acquires involuntarily on birth. The suffering of such a person by virtue of caste is not wiped out by a marriage with the person belonging to a forward caste. The label attached to a person born into a scheduled caste or a scheduled tribe continues notwithstanding the marriage. No material has been placed before us by the applicant so as to point out that the caste of a person can be changed either by custom, usage, religious sanction or provision of law.

13. If the interpretation sought to be put by the learned counsel appearing for the applicant is accepted, it will defeat the very object of enacting the said Act. It will defeat the innovative steps taken by the framers of our constitution for protecting the persons belonging to scheduled castes and scheduled tribes who have suffered for generations.

14. Thus, the question formulated by the learned Single Judge will have to be answered in the affirmative. The question formulated by us in paragraph one will have to be answered in the negative. A woman who is born into a scheduled caste or a scheduled tribe, on marriage with a person belonging to a forward caste, is not automatically transplanted into the caste of husband by virtue of her marriage and, therefore, she cannot be said to belong to her husband’s caste.

The Reserve Bank of India, as ever diligently pursuing its mandate towards prevention of money laundering, has recently issued revised 'Know Your Customer' (KYC) norms to be observed by all agents and authorized dealers in foreign exchange. These norms have been introduced with the following objective;

The objective of prescribing KYC/AML/CFT guidelines is to prevent the system of purchase and / or sale of foreign currency notes / Travellers' Cheques by Authorised Persons (referred as APs hereinafter) from being used, intentionally or unintentionally, by criminal elements for money laundering or terrorist financing activities. KYC procedures also enable APs to know / understand their customers and their financial dealings better which in turn help them manage their risks prudently.

In general, these guidelines stipulate that the Authorised Persons "should keep in mind that the information collected from the customer while undertaking transactions is to be treated as confidential and details thereof are not to be divulged for cross selling or any other like purposes. APs should, therefore, ensure that information sought from the customer is relevant to the perceived risk, is not intrusive, and is in conformity with the guidelines issued in this regard. Any other information from the customer, wherever necessary, should be sought separately with his/her consent." Thereafter the various particulars of these norms have been discussed and described in detail so as to circumvent the three identified stages of money laundering which these norms describe as under;

The offence of Money Laundering has been defined in Section 3 of the Prevention of Money Laundering Act, 2002 (PMLA) as "whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the proceeds of crime and projecting it as untainted property shall be guilty of offence of money laundering". Money Laundering can be called a process by which money or other assets obtained as proceeds of crime are exchanged for "clean money" or other assets with no obvious link to their criminal origins.

There are three stages of money laundering during which there may be numerous transactions made by launderers that could alert an institution to criminal activity –

Layering - separating illicit proceeds from their source by creating complex layers of financial transactions designed to disguise the audit trail and provide anonymity.

Integration - the provision of apparent legitimacy to criminally derived wealth. If the layering process has succeeded, integration schemes place the laundered proceeds back into the economy in such a way that they reenter the financial system appearing to be normal business funds.

In an important message to the all courts looking after original matters, the Delhi High Court has pointed it out as the duty of the courts to ensure that the cause of action for which the suit has been filed survives at each stage of the trial. The High Court justified the action of the single judge in dismissing a suit at at a late stage in the suit holding that the cause of action had failed to continue and thus the suit was dismissed in terms of Order 7 Rule 11 of the Code of Civil Procedure. The High Court inter alia declared as under;

17. Rigmarole of a trial is not to be routinely undertaken. At every stage of the suit, Judges have to be vigilant to see as to whether cause of action to further proceed with the suit survives or not. At any stage of the suit, if the court finds that the cause of action no longer survives, then it ought not to await a formal application under Order VII Rule 11 of CPC and can “suo moto” exercise its inherent powers under Section 151 of CPC in the interest of justice, to do complete justice between the parties. We, therefore, do not find any substance in the contention of learned senior counsel for the Appellant of impugned order short-circuiting the trial.

18. Courts have to play proactive role as they are faced with overflowing dockets and the learned Single Judge has shown the way by proceeding to examine as to whether Appellant’s claim discloses the cause of action to proceed to a trial. Although the impugned order discloses that the issue of maintainability of a suit has been dealt with, but in fact, learned Single Judge has by detailed order, invoked clause (a) of Rule 11 of Order 7 of the Code of Civil Procedure, which provides for rejection of plaint if it is found to be lacking cause of action. It is really immaterial that in the impugned order, suit of the Appellant’s has been held to be not maintainable. Without concentrating on the phraseology, true import of the order has to be seen. In fact, the purport of the impugned order is of rejection of the Appellant’s plaint as it has been found in the impugned order that no part of the contract survives which could be specifically enforced. Infact, learned Single Judge has correctly found that there was no cause of action with Appellant to proceed with his suit.

In a recent decision the Delhi High Court, tracing the origin and expansion of the concept of 'Dilution of Trademark' has explained in no uncertain terms the meaning and ambit of the expression as understood in the Indian context. Taking note of the internationally understood meaning of the expression 'Dilution of Trademark', the High Court proficiently explained the concept in the following terms;

32. The concept of dilution was first thought of by Frank I Scheckter, in “The Rational Basis of Trade Mark Protection" [1927] 40 Harvard Law Review 813. Judge Learned Hand‟s famous opinion in Yale Electric Corp. v. Robertson, 26 F.2d 972 (2d Cir. 1928) which approved injunctive relief against a defendant‟s use of a mark similar to that of the plaintiff in connection with unrelated goods states, inter alia, that:

"[I]t has of recent years been recognized that a merchant may have a sufficient economic interest in the use of his mark outside the field of his own exploitation to justify interposition by a court. His mark is his authentic seal; by it he vouches for the goods which bear it; it carries his name for good or ill. If another uses it, he borrows the owner‘s reputation, whose quality no longer lies within his own control. This is an injury, even though the borrower does not tarnish it, or divert any sales by its use; for a reputation, like a face, is the symbol of its possessor and creator, and another can use it only as a mask. And so it has come to be recognized that, unless the borrower‘s use is so foreign to the owner‘s as to insure against any identification of the two, it is unlawful."

33. The old law in India, i.e the Trade and Merchandise Marks Act, 1958, did not provision for trademark dilution, as in the case of Section 29 (4). The principle of dilution therefore, was developed by our courts, having regard to internationally recognized standards about the need to protect generally well known trademarks, whose exploitation, without any good cause in relation to diverse and dissimilar products or services could injure and “dilute” its appeal. Thus, in Daimler Benzaktiegesellschaft & Anr. v. Eagle Flask Industries Ltd., ILR (1995) 2 Del 817 this court held that:

14. There are marks which are different from other marks. There are names and marks which have become household words. Mercedes as name of a Car would be known to every family that has ever used a quality car. The name 'Mercedes' as applied to a car, has a unique place is the world. There is hardly one who is conscious of existence of the cars/ automobiles, who would not recognize the name 'Mercedes' used in connection with cars. Nobody can plead in India, where 'Mercedes' cars are seen on roads, where 'Mercedes' have collaborated with TATAs, where there are Mercedes Benz—Tata trucks have been on roads in very large number, (known as Mercedes Benz Trucks, so long as the collaboration was there), who can plead that he is unaware of the word 'Mercedes' as used with reference to car or trucks.

15. In my view, the Trade Mark law is not intended to protect a person who deliberately, sets out to take the benefit of somebody else‘s reputation with reference to goods, especially so when the reputation extends worldwide. By no stretch of imagination can it be said that use for any length of time of the name 'Mercedes' should be not, objected to.

16. We must keep in mind that the plaintiff company exists in Germany. An insignificant use by too small a product may not justify spending large amounts needed in litigation. It may not be worthwhile.

17. However, if despite legal notice, any one big or small, continues to carry the illegitimate use of a significant world wide renowned name/mark as is being done in this case despite notice dated 04-07-1990, there cannot be any reason for not stopping the use of a world reputed name. None should be continued to be allowed to use a world famed name to goods which have no connection with the type of goods which have generated the world wide reputation.

18. In the instant case, 'Mercedes' is a name given to a very high priced and extremely well engineered product. In my view, the defendant cannot dilute that by user of the name Mercedes with respect to a product like a thermos or a casserole.'

34. The Act, as existing is not explicit about dilution- it does not refer to that term. Yet, the entire structure of Section 29(4) is different from the earlier part, and in effect expresses Parliamentary intent about the standards required for a plaintiff to establish dilution of its trademark, in relation to dissimilar goods or products. This is because:

(1) The “likelihood of Confusion” test which is the essential basis of Trademark law, is not incorporated in relation to infringement of the kind Section 29(4) envisions. Section 29(1) – which talks of trademark infringement, generally, prescribes that the impugned mark should be “identical with, or deceptively similar to‖ the registered trademark. Section 29 (2), (which deals with trademark infringement) enacts that the impugned mark should be similar or identical with the registered mark, as to cause confusion in relation to similar goods. The emphasis on similar goods is the recurring theme in each of the sub clauses ((a), (b) and (c)) and the identity/ similarity requirement along with the similarity of goods are twin, conditions (established by the use of the conjunctive “and”). However, Section 29 (4) posits identity or similarity of the mark alone but, in relation to dissimilar goods.

(2) The object of the “dilution” form of infringement (under Section 29(4)) in effect, is a wider trademark protection without the concomitant likelihood of confusion requirement, as it is in respect of dissimilar or unrelated products and services.

(3) The confusion requirements under Section 28 are different from those under Section 29 (4). Section 29 (4) does not refer to the need for proving confusion anywhere in the relevant portions. Obviously the emphasis here is different.

(4) The plaintiff has to establish, under Section 29 (4) apart from the similarity of the two marks (or their identity) that his (or its) mark –

(i) has a reputation in India;

(ii) the use of the mark without due cause

(iii) the use (amounts to) taking unfair advantage of or is detrimental to, the distinctive character or repute of the registered trade mark.

(5) Importantly, there is no presumption about trademark infringement, even if identity of the two marks is established, under Section 29 (4). In contrast, Section 29 (3) read with Section 29 (2) (c) enact that if it is established that the impugned mark‟s identity with the registered trade mark and the identity of the goods on services covered by such registered trade mark is likely to cause confusion on the part of the public, or which is likely to have an association with the registered trade mark, ―the court shall presume that it is likely to cause confusion on the part of the public."

35. There has been considerable debate about the precise contours of trademark dilution standards, in the context of unfair competition, in courts in the United States, the European Court and courts in the United Kingdom. US courts had split on whether the owners of famous marks had to prove “actual” dilution, or a “likelihood” of dilution. In 2003, the US Supreme Court resolved the split in Moseley v. V. Secret Catalogue, Inc., 537 U.S. 418 (2003), holding that proof of actual dilution was required. Speaking to concerns about the expense of “often unreliable” consumer surveys and other means of demonstrating actual dilution, the Court held that such direct evidence ―will not be necessary if actual dilution can reliably be proved through circumstantial evidence." There was Congressional intervention soon thereafter, which somewhat blunted the court‟s holding. The court noted that dilution was largely a statute driven concept, unlike common law evolved reliefs:

"Unlike traditional infringement law, the prohibitions against trademark dilution are not the product of common-law development, and are not motivated by an interest in protecting consumers. The seminal discussion of dilution is found in Frank Schechter's 1927 law review article concluding ''that the preservation of the uniqueness of a trademark should constitute the only rational basis for its protection.'' Rational Basis of Trademark Protection, 40 Harv. L.Rev. 813, 831."

36. An anti-dilution remedy is contemplated by Articles 4 and 5 of the First Council Directive of the European Communities (89/104/EEC) dated December 21, 1988; it was implemented, for the European Union through Council Regulation (EC) No. 40/94 dated December 20, 1993. It is known as an “anti-detriment” remedy in the United Kingdom and is enacted in Sections 5 and 10 of the Trade Marks Act 1994 (U.K.), 1994. The courts in the United Kingdom have been cautious in granting this remedy, as seen in Mastercard International Inc. v. Hitachi Credit (UK) Plc, [2004] EWHC 1623 (Ch.) (confirming the dismissal of Mastercard‟s opposition to the trademark Credit Master for a credit card); Pebble Beach Co. v. Lombard Brands Ltd., [2002] S.L.T. 1312 (refusing to grant a preliminary injunction against whisky makers using the trademark “Pebble Beach” when the owners of the famous American golf course claimed these marks were detrimental to their own); DaimlerChrysler AG v. Alavi, [2001] R.P.C. 42, (where the court rejected the claim of Mercedes-Benz against the defendant‟s MERC trade mark, used in association with a clothing and shoe business), and Baywatch Production Co. v. Home Video Channel, [1997] F.S.R. 22 (Ch.) (where the court found that the broadcasting of “Babewatch”, which contained sexually explicit material, was not detrimental to the “Baywatch” trade mark). It was held, in DaimlerChrysler AG –v- Alavi [2001] RPC 42 that::-

"88. In my view, the best approach is just to follow the section, remembering Jacobs A.G.'s warning that it is concerned with actual effects, not risks or likelihoods. The enquiry is as follows. (1) Does the proprietor's mark have a reputation? If so, (2) is the defendant's sign sufficiently similar to it that the public are either deceived into the belief that the goods are associated with the proprietor so that the use of the sign takes unfair advantage of the mark, or alternatively causes detriment in their minds to either (a) the repute or (b) the distinctive character of the mark, or (3) even if they are not confused, does the use of the sign nonetheless have this effect, and (4) is the use complained of nonetheless with due cause. Detriment can take the form either of making the mark less attractive (tarnishing, to use Neuberger J.'s word) or less distinctive (blurring). On this analysis, VISA is of course a case of tarnishing."

37. The test of similarity or confusion had been indicated, in Sabel BV v Puma AG [1998] RPC 199 as follows: -

". . . The likelihood of confusion must therefore be appreciated globally, taking into account all factors relevant to the circumstances of the case….That global appreciation of the visual, aural or conceptual similarity or the marks in question, must be based on the overall impression given by the marks, bearing in mind, in particular, their distinctive and dominant components . . . The average consumer normally perceives a mark as a whole and does not proceed to analyse its various details."

It was held, in Adidas-Salomon AG v Fitnessworld Trading Ltd [2004] Ch 120, that it is not necessary to establish confusion or the likelihood of confusion in order to establish infringement under this head. The plaintiff has to show that there is sufficient degree of similarity between the mark with a reputation and the sign (ie. the impugned mark) to have the effect that the relevant section of the public establishes a link between the sign and the mark. The court also cautioned that all tests have to be cumulatively satisfied, or else the courts would be indulging in over-protection to the registered mark, affecting competititon:

'Above all, it is necessary to give full weight to the provisions of Article 5(2) as a whole. Thus the national court must be satisfied in every case that the use of the contested sign is without due cause; and that it takes unfair advantage of, or is detrimental to, the distinctive character or the repute of the mark. These requirements, properly applied, will ensure that marks with a reputation, whether or not the reputation is substantial, will not be given unduly extensive protection.'

38. Explaining what is meant by “reputation” it was held, in General Motors Corp v Yplon SA [1999] All ER (EC) 865 by the ECJ that in order to have a reputation a trade mark had to satisfy a 'knowledge threshold'. This was described as follows:

"26 The degree of knowledge required must be considered to be reached when the earlier mark is known by a significant part of the public concerned by the products or services covered by that trade mark.

27 In examining whether this condition is fulfilled, the national court must take into consideration all the relevant facts of the case, in particular the market share held by the trade mark, the intensity, geographical extent and duration of its use, and the size of the investment made by the undertaking in promoting it."

39. US Courts have emphasized the similarity or confusing nature of the mark, having regard to dissimilar goods, by saying that that the perception of the sign or mark should be that it calls to mind the memory of the mark, although the two are not confused (likelihood of association in the strict sense). Thus, it was held by the Seventh Circuit (US), in Barbecue Marx, Incorporated, Plaintiff –vs- Ogden, Incorporated 235 F.3d 1041 (7th Cir. 2000) that:

"In order to secure injunctive relief, the rival mark should be confusingly similar in appearance and suggestion, to the plaintiff‘s mark."

"The federal dilution statute also requires a showing of likelihood of dilution either [**16] by blurring or by tarnishment. 15 U.S.C. § 1125(c)(1). Where, as here, a plaintiff's claim is based on a dilution by blurring theory, the question is whether the "association arising from the similarity between a mark or trade name and a famous mark . . . impairs the distinctiveness of the famous mark." Id. § 1125(c)(2)(B). A court may consider all relevant factors in making this determination, including the six identified by the statute:

(i) The degree of similarity between the mark or trade name and the famous mark.

(ii) The degree of inherent or acquired distinctiveness of the famous mark.

(iii) The extent to which the owner of the famous mark is engaging in substantially exclusive use of the mark.

(iv) The degree of recognition of the famous mark.

(v) Whether the user of the mark or trade name intended to create an association with the famous mark.

(vi) Any actual association between the mark or trade name and the famous mark."

41. The need to establish “linkage” or mental association of the offending mark, with that of the plaintiff‟s is one of the vital essentials for securing relief in any claim for dilution. This was emphasized as follows, by Professor McCarthy (McCarthy, J. Thomas. McCarthy on Trademarks and Unfair Competition, Vol. IV, 4th ed. 1996 (loose-leaf updated December 2005, release 36):

". . . if a reasonable buyer is not at all likely to think of the senior user‘s trademark in his or her own mind, even subtly or subliminally, then there can be no dilution. That is, how can there be any ―whittling away‖ if the buyer, upon seeing defendant‘s mark, would never, even unconsciously, think of the plaintiff‘s mark? So the dilution theory presumes some kind of mental association in the reasonable buyer‘s mind between the two parties and the mark. [Footnote omitted; emphasis in original; — 24:70, at p. 24-143.]"

"On the one hand, well-known mark owners say that people should not reap where they have not sown, that bad faith should be punished, that people who sidle up to their well-known marks are guilty of dishonest commercial practice. These vituperations lead nowhere. One might as well say that the well-known mark owner is reaping where it has not sown when it stops a trader in a geographic or market field remote from the owner‘s fields from using the same or a similar mark uncompetitively. (D. Vaver, "Unconventional and Well-known Trade Marks", [2005] Sing. J.L.S. 1, at p. 16)

42. Two recent decisions of the Canadian Supreme Court, also dealt with the subject. In the first, Veuve Clicquot Ponsardin, Maison Fondée en 1772 vs- Boutiques Cliquot Ltée, Mademoiselle Charmante Inc. and 3017320 Canada Inc. [2006] 1 S.C.R. 824 (action brought by Veuve Clicquot, a premium champagne brand against the junior user‟s use of the same word mark in relation to women clothing range boutiques) the court emphasized the need to show distinctiveness in the region, of the mark, beyond the wares or services of the proprietor, and other relevant factors:

"The finding that VEUVE CLICQUOT is a ―famous' mark is of importance in considering ―all the surrounding circumstances‖ because fame presupposes that the mark transcends at least to some extent the wares with which it is normally associated. The evidence is clear that VEUVE CLICQUOT carries an aura of luxury which may extend outside the wine and champagne business, and may (as the appellant‘s expert stated) evoke a broad association with luxury goods.

33 While the halo effect or aura of the VEUVE CLICQUOT mark is not necessarily restricted to champagne and related promotional items and could expand more broadly into the luxury goods market, no witness suggested the mark would be associated by ordinary consumers with midpriced women‘s clothing. Thus, in considering all of the relevant circumstances, the trial judge was of the opinion ―that the key factor is the significant difference between the plaintiff‘s wares and those of the defendants' and that ―[t]he plaintiff‘s activities and those of the defendants are so different that there is no risk of confusion in consumers‘ minds" (para. 76). In weighing up the s. 6(5) factors, this was an emphasis she was entitled to place in this particular case. Section 6(2) recognizes that the ordinary somewhat-hurried consumer may be misled into drawing the mistaken inference ―whether or not the wares or services are of the same general class', but it is still a question for the court as to whether in all the circumstances such consumers are likely to do so in a particular case.

45. The depreciation or anti-dilution remedy is sometimes referred to as a 'super weapon' which, in the interest of fair competition, needs to be kept in check. In his leading six-volume U.S. treatise on trademark law, Professor J. T. McCarthy writes in terms that, substituting depreciation for dilution, are directly applicable to this case:

'Even the probability of dilution should be proven by evidence, not just by theoretical assumptions about what possibly could occur or might happen. . . . the courts should separate any antidilution claim into its discrete elements and rigorously require a showing of proof of those elements.' (McCarthy on Trademarks and Unfair Competition, vol. 4 (4th ed. (loose-leaf), — 24:67.1, at p. 24-136) 46 Section 22 of our Act has received surprisingly little judicial attention in the more than half century since its enactment. It seems that where marks are used in a confusing manner the preferred remedy is under s. 20. Equally, where there is no confusion, claimants may have felt it difficult to establish the likelihood that depreciation of the value of the goodwill would occur. Be that as it may, the two statutory causes of action are conceptually quite different. Section 22 has four elements. Firstly, that a claimant‘s registered trade-mark was used by the defendant in connection with wares or services — whether or not such wares and services are competitive with those of the claimant. Secondly, that the claimant‘s registered trade-mark is sufficiently well known to have significant goodwill attached to it. Section 22 does not require the mark to be well known or famous (in contrast to the analogous European and U.S. laws), but a defendant cannot depreciate the value of the goodwill that does not exist. Thirdly, the claimant‘s mark was used in a manner likely to have an effect on that goodwill (i.e. linkage) and fourthly that the likely effect would be to depreciate the value of its goodwill (i.e. damage). I will address each element in turn.

54 While ―fame "is not a requirement of s. 22, a court required to determine the existence of goodwill capable of depreciation by a ―non-confusing" use (as here) will want to take that approach into consideration, as well as more general factors such as the degree of recognition of the mark within the relevant universe of consumers, the volume of sales and the depth of market penetration of products associated with the claimant‘s mark, the extent and duration of advertising and publicity accorded the claimant‘s mark, the geographic reach of the claimant‘s mark, its degree of inherent or acquired distinctiveness, whether products associated with the claimant‘s mark are confined to a narrow or specialized channel of trade, or move in multiple channels, and the extent to which the mark is identified with a particular quality. See generally F. W. Mostert, Famous and Well-Known Marks: An International Analysis (1997), at pp. 11-15; INTA, Protection of Well-Known Marks In the European Union, Canada and the Middle East (October 2004)."

In another judgment, Mattel, Inc. v. 3894207 Canada Inc., [2006] 1 S.C.R. 772, the court observed about the trade dilution theory, (while refusing to grant relief to the “Barbie” brand against use of that term in relation to a restaurant,) that:

"The traditional rule was that ―[i]f [a manufacturer] does not carry on a trade in iron, but carries on a trade in linen, and stamps a lion on his linen, another person may stamp a lion on iron‖: Ainsworth v. Walmsley (1866), L.R. 1 Eq. 518, at pp. 524-25. While I agree with Professor McCarthy, quoted earlier, that ―a relatively strong mark can leap vast product line differences at a single bound‖ (§ 11:74), nevertheless it is implicit in Professor McCarthy‘s statement that the ―product line‖"will generally represent a significant obstacle for even a famous mark to leap over. The doll business and the restaurant business appeal to the different tastes of a largely different clientele. As was found by the Board:

"The nature of the opponent‘s wares and the applicant‘s services are quite different. In this regard, the opponent has established that its mark is very well known, if not famous in Canada, in association with dolls and doll accessories. The opponent‘s target market are children and to some extent adult collectors. By contrast, the applicant is in the restaurant business and its target market are [sic] adults. [p. 400]"

79. There is no evidence that adult consumers would consider a doll manufacturer to be a source of good food, still less that the BARBIE trademark would be understood to guarantee, as the 1953 Fox Report (at p. 26) put it, ―character and quality‖. The appellant suggests that the BARBIE doll has become part of pop culture, and there is some truth to that, but the meaning is not necessarily a positive recommendation for all wares and services

87. In the present case, quite apart from the great difference between the appellant‘s wares and the respondent‘s services, they occupy different channels of trade and the increased potential for confusion that might arise through intermingling in a single channel of trade does not present a serious problem.

88. Both marks use the name ―Barbie‖ but the respondent‘s applied-for mark wraps the name in a design, whereas the appellant‘s mark as registered does not. On the other hand, if the appellant‘s mark as used in packaging and advertising is taken into account, there is a considerable resemblance."

43. The discussion on the subject would not be complete without a reference to the latest judgment of the European Court, on the issue, in Intel Corp Inc –vs- CPM United Kingdom Ltd 2009 ETMR 13. The claimant, Intel Corp Inc, registered trademark proprietor in respect of various marks, in the United Kingdom and several European countries, sued Intel-mark, the user of “Intel” in relation to telemarketing services. The courts in the United Kingdom had refused relief, holding that there was no dilution of the mark “Intel” despite its “huge” reputation; nevertheless the Court of Appeals made a reference to the European Court, which concurred with the view of the domestic courts. In the judgment, it restated the principles governing the field, as follows:

"44 As regards the degree of similarity between the conflicting marks, the more similar they are, the more likely it is that the later mark will bring the earlier mark with a reputation to the mind of the relevant public. That is particularly the case where those marks are identical. 45 However, the fact that the conflicting marks are identical, and even more so if they are merely similar, is not sufficient for it to be concluded that there is a link between those marks. 46 It is possible that the conflicting marks are registered for goods or services in respect of which the relevant sections of the public do not overlap. 47 The reputation of a trade mark must be assessed in relation to the relevant section of the public as regards the goods or services for which that mark was registered. That may be either the public at large or a more specialised public (see General Motors, paragraph 24). 48 It is therefore conceivable that the relevant section of the public as regards the goods or services for which the earlier mark was registered is completely distinct from the relevant section of the public as regards the goods or services for which the later mark was registered and that the earlier mark, although it has a reputation, is not known to the public targeted by the later mark. In such a case, the public targeted by each of the two marks may never be confronted with the other mark, so that it will not establish any link between those marks. 49 Furthermore, even if the relevant section of the public as regards the goods or services for which the conflicting marks are registered is the same or overlaps to some extent, those goods or services may be so dissimilar that the later mark is unlikely to bring the earlier mark to the mind of the relevant public. 50 Accordingly, the nature of the goods or services for which the conflicting marks are registered must be taken into consideration for the purposes of assessing whether there is a link between those marks. 51 It must also be pointed out that certain marks may have acquired such a reputation that it goes beyond the relevant public as regards the goods or services for which those marks were registered. 52 In such a case, it is possible that the relevant section of the public as regards the goods or services for which the later mark is registered will make a connection between the conflicting marks, even though that public is wholly distinct from the relevant section of the public as regards goods or services for which the earlier mark was registered. 53 For the purposes of assessing where there is a link between the conflicting marks, it may therefore be necessary to take into account the strength of the earlier mark‘s reputation in order to determine whether that reputation extends beyond the public targeted by that mark. 54 Likewise, the stronger the distinctive character of the earlier mark, whether inherent or acquired through the use which has been made of it, the more likely it is that, confronted with a later identical or similar mark, the relevant public will call that earlier mark to mind. 55 Accordingly, for the purposes of assessing whether there is a link between the conflicting marks, the degree of the earlier mark‘s distinctive character must be taken into consideration. 56 In that regard, in so far as the ability of a trade mark to identify the goods or services for which it is registered and used as coming from the proprietor of that mark and, therefore, its distinctive character are all the stronger if that mark is unique – that is to say, as regards a word mark such as INTEL, if the word of which it consists has not been used by anyone for any goods or services other than by the proprietor of the mark for the goods and services it markets – it must be ascertained whether the earlier mark is unique or essentially unique. 57 Finally, a link between the conflicting marks is necessarily established when there is a likelihood of confusion, that is to say, when the relevant public believes or might believe that the goods or services marketed under the earlier mark and those marketed under the later mark come from the same undertaking or from economically-linked undertakings (see to that effect, inter alia, Case C-342/97 Lloyd Schuhfabrik Meyer [1999] ECR I-3819, paragraph 17, and Case C-533/06 O2 Holdings and O2 (UK) [2008] ECR I-0000, paragraph 59). 58 However, as is apparent from paragraphs 27 to 31 of the judgment in Adidas-Salomon and Adidas Benelux, implementation of the protection introduced by Article 4(4)(a) of the Directive does not require the existence of a likelihood of confusion. 59 The national court asks, in particular, whether the circumstances set out in points (a) to (d) of Question 1 referred for a preliminary ruling are sufficient to establish a link between the conflicting marks. 60 As regards the circumstance referred to in point (d) of that question, the fact that, for the average consumer, who is reasonably well informed and reasonably observant and circumspect, the later mark would call the earlier mark to mind is tantamount to the existence of such a link. 61 As regards the circumstances referred to in paragraphs (a) to (c) of that question, as is apparent from paragraph 41 to 58 of this judgment, they do not necessarily imply the existence of a link between the conflicting marks, but they do not exclude one either. It is for the national court to base its analysis on all the facts of the case in the main proceedings.

62 The answer to point (i) of Question 1 and to Question 2 must therefore be that Article 4(4)(a) of the Directive must be interpreted as meaning that whether there is a link, within the meaning of Adidas-Salomon and Adidas Benelux, between the earlier mark with a reputation and the later mark must be assessed globally, taking into account all factors relevant to the circumstances of the case. 63 The fact that for the average consumer, who is reasonably well informed and reasonably observant and circumspect, the later mark calls the earlier mark with a reputation to mind is tantamount to the existence of such a link, within the meaning of Adidas-Salomon and Adidas Benelux, between the conflicting marks. 64 The fact that: "the earlier mark has a huge reputation for certain specific types of goods or services, and - those goods or services and the goods or services for which the later mark is registered are dissimilar or dissimilar to a substantial degree, and – the earlier mark is unique in respect of any goods or services, does not necessarily imply that there is a link, within the meaning of Adidas-Salomon and Adidas Benelux, between the conflicting marks…."

44. It may be seen from the preceding discussion that dilution of trademark is a species of infringement. Though trademarks are concerned with protection of marks which have acquired a degree of distinctiveness, in relation to particular goods and services, courts have, over the years recognized that in relation to marks which have achieved notoriety as to have a reputation about the quality of products which the manufacturer, or services the originator (of the mark) is associated with, then, even in relation to dissimilar goods – or unrelated products, protection of such brand name, mark or acquired distinctiveness is essential. This measure of protection to marks in relation to similar junior marks, but for dissimilar goods is, in substance the protection against dilution (or Blurring or tarnishment) of the mark. Prior to the 1999 Act, Indian law had developed through case law; the new Act changed that, and has enjoined protection against dilution, if certain essential elements are established; they are:

(1) The impugned mark is identical or similar to the senior mark;

(2) The senior or injured mark has a reputation in India;

(3) The use of the impugned mark is without due cause;

(4) The use of the impugned mark (amounts to) taking unfair advantage of, or is detrimental to, the distinctive character or reputation of the registered trade mark. Unlike in the case of infringement of trademark in relation to similar goods or services, in the case of dilution (infringement of mark by use in respect of dissimilar goods or services) there is no presumption of infringement of the mark. This means that each element has to be established.

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